Association of Justice Counsel wins at the Supreme Court

More than 25 years ago, in an attempt to intervene in urgent immigration files, the federal government introduced on-call services on a voluntary basis by it jurist employees. These jurists were allowed to enroll in the on-call services, which would ensure their availability and their presence after work hours as well as weekends. Their usual compensation for this service would be supplemental hours or paid leave for their on-call hours served.

In 2010, the federal government notified the jurists that they would no longer be automatically compensated for their on-call participation. Compensation would only be offered if they were called at work to serve on an urgent basis. Following this modification, there were no longer enough volunteers to serve on-call, consequently, it became a requirement for the jurists.

The Association of Justice Counsel filed a grievance to this effect and the labour arbitrator ruled in their favor. The federal government then appealed the matter at the Federal Appeals Court, favoring the employer, resending the file to a new arbitrator.

Following this reversal, the jurists brought the decision before the Supreme Court, which stipulated with a 7-judge majority that this unilateral directive removing compensation created an apparent injustice, though compensation had been a longstanding practice. The Court stipulated that the government should find other means to make sure that the jurists participated in said service.

By mutual agreement, the 9 judges agreed on the fact that the directive does not violate the right to freedom protected by the Canadian Charter of Rights and Freedoms, hence not implicating the fundamental guarantee protected in article 7.

As a result, the initial arbitrator’s decision was reaffirmed and the employer ordered to cease to impose the directive which does not compensate on-call service.